Variances in Massachusetts: The Three-Part Test

A variance allows a project to depart from a specific zoning requirement. It’s granted by the Zoning Board of Appeals under Section 10 of the Zoning Act (M.G.L. c. 40A).

The three-part test

The board may grant a variance only if it finds that:

1. Circumstances unique to the land. Owing to the soil conditions, shape, or topography of the land or structure, which especially affect that land but not the zoning district generally,
2. Substantial hardship. Literal enforcement of the bylaw would involve substantial hardship, financial or otherwise, and
3. No substantial detriment. Relief can be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of the bylaw.

All three must be met. Personal circumstances and the simple desire for a larger or more profitable project don’t qualify.

Use variances

A variance that allows a use not otherwise permitted in the district is available only if the local bylaw expressly authorizes use variances. Many don’t.

Lapse

If the rights under a variance aren’t exercised within one year, the variance lapses. The board may extend that period by up to six months if an extension is requested before it expires.

Before you apply

Because variances are difficult to obtain and vulnerable on appeal, it’s worth asking first whether the project can reach its goals another way: a different design, a special permit path, or protections for nonconforming structures under Section 6.

General information, not legal advice.